USUL FIQH I

ECON 3550

SECTION 1
ASSIGNMENT 1 & 2

LECTURER’S NAME:
DR. IBRAHIM NUHU TAHIR

STUDENT’S NAME:
NUR AMIRAH BINTI ABD RAHMAN 1435816

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Question 1

Write a descriptive analysis of the Origin of Usul al-Fiqh (From birth to Completion).

It is difficult to attempt a study of Usul Al-Fiqh without going back to the history of Fiqh which is the
practical doctrine of the Shariáh that have been extracted from detailed source evidence. In short, history
of growth and development of Usul Al-Fiqh can be explained by several stages.

A) Time of Prophet SAW

During the time of Rasulullah SAW, it is important to understand that at that moment they received direct
divine revelation from Allah SWT through verses of Al-Qurán that sent down by Jibrail. In the same time,
Rasulullah SAW was still alive. Thus, the people during that time were learning directly with Rasulullah
SAW. They have Al-Qurán and Rasulullah's sunnah as their source evidence and they always have
Rasulullah SAW to answer their confusion at any time.

Al-Qurán and Sunnah are the prime sources upon which the entire ummah agreed, and on the validity of
which there is a general mutual consent, comprises the two sources that formed the foundation of legislation
at the time of Prophet SAW.

During the lifetime of the Prophet, all the legal rulings of the Shariáh, inclusive of all its classifications,
such as principal and derived rulings, teaching on the fundaments of the faith, and regulations regarding
personal practice and legalities were derived from these two sources, the Al-Qurán and Sunnah.

Another source during the time prophet is Ijtihad. Ijtihad was practised by Rasulullah SAW and his
companion. The Prophet's Ijtihad was sometimes confirmed in the Al-Qurán and sometimes not. The Ijtihad
by the companion was always response in the situation they faced. Later, they will explain to Rasulullah
the situation and the decision they made. Sometimes it gets approval from Rasulullah SAW and when not,
Rasulullah would give explaination and correct them. Both correction and approval would become the
sunnah.

The indication that Ijtihad is valid and relevant in the contemporary context are many. One of the example
was when Muádh Ibn Jabal states that when the Prophet sent him to Yemen, he asked:

"What will you do if a matter is referred to you for judgement?"

Muádh said: "I will judge according to the Book of Allah." The Prophet asked: "What if you find no solution
in the Book of Allah?” Muádh said: "Then I will judge by the Sunnah of the Prophet". The Prophet asked:
"And what if you do not find it in the Sunnah of the Prophet?” Muádh said: "Then I will make Ijtihad

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formulate my own judgement." The Prophet patted Muádh's chest and said: "Praise be to Allah who has
guided the messenger of His Prophet to what which pleases Him and His Messenger.’

This Ijtihad and forming of one's own judgement, as mentioned by Muádh, is further explained in the advice
Umar gave to Abu Musa when he appointed him a judge: "Judgement is to be passed on the basis of express
Quránic imperatives or established Sunnah practices..." Then he added:

"Make sure that you understand clearly every case that is brought to you for which there is no applicable
text of the Qurán and the Sunnah. Yours, then, is a role of comparison and analogy, so as to distinguish
similarities in order to reach a judgement that seems nearest to justice and best in the sight of God".

B) Time of Khalifah Ar-Rasyidin

After Rasulullah SAW died, the Muslim ummah were guided with the first Khalifah appointed based on
the decision from the first Ijma’. All the Sahabah agreed at that time Saidina Abu Bakr was the suitable
candidate to lead them. At that time, the absence of Rasulullah SAW was not long, so that Al-Qurán and
Sunnah still the best sources and Ijma’ are used even though at that time they do not use the term Ijma’.

i) Saidina Abu Bakr As-Siddiq

Maymun Ibn Mahrán summed up Saidina Abu Bakr's method of arriving at legal judgements as follows:

"Whenever a dispute was referred to him, Abu Bakr used to look into the Al-Qurán; if he found something
according to which he could pass a judgement, he did so. If he could not find a solution in the Al-Qurán
but remembered some relevant aspect of the Prophet's Sunnah, he would judge according to that. If he could
find nothing in the Sunnah, he would go and say to the Muslims: "Such and such a dispute has been referred
to me. Do any of you know anything in the Sunnah according to which judgement may be passed?" If
someone was able to answer his question and provide relevant information, Abu Bakr would say: "Praise
be to Allah who has enabled some of us to remember what they have learnt from our Prophet". If he could
not find any solution in the Sunnah, then he would gather the leaders and elite of the people and consult
with them. If they agreed on a matter then he passed a judgement on that basis."

If all the methods mentioned above failed to produce any result, then he would make Ijtihad and form his
own opinion, either by interpreting a text in such a way that its legal implications became apparent or by
exercising his own legal acumen.

Overall, in time of Saidina Abu Bakr, he used Al-Qurán, Sunnah, and check with another companion that
might remember Sunnah which he might overlook, Ijma' and his own Ijtihad to come to a decision, depends
on the situation.

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 ii) Saidina Umar Al-Khattab

In time of Saidina Umar Al-Khattab appointed as Khalifah, the most noticeable feature of Umar's
methodology, however, is the fact that he often consulted with the Sahabah and discussed matters with
them so as to reach the best understanding and find the most appropriate way to carry out judgements.

Umar's understanding was comprehensive and he possessed good common sense. Umar is someone that
acute and perspicacious. He was quick to relate the particular to the general and could pursue ramifications
of an issue back to basic principles in order to see its wider implications.

In general in time of Saidina Umar as Khalifah, he still used the same approach as Saidina Abu Bakr,
however, despite using the sources as the previous Khalifah, Saidina Umar tends to follow the way
Rasulullah SAW when facing situations. As example faced with a choice between two things would always
choose the easier of the two. As a result, Saidina Umar left a great amount of jurisprudence when he died.

iii) Saidina Uthman Ibn Affan

Saidina Uthman did not leave a great amount of jurisprudence as Saidina Umar did. However, Saidina
Uthman always refers to how his previous Khalifah make ijtihad. Saidina Uthman also formulated the
ijtihad, that everyone should read the Al-Qurán according to the Zayd's way of recitation because he thought
that this was the soundest, and also the most likely to forestall disagreements.

iv) Saidina Ali Ibn Abi Talib

Among all the Khalifah, Saidina Ali uses a vast field of references in making decisions. During his time,
he added in his practices Qiyas, Istishab, Istishan and Istislah. However, those term are not being called
as what it is nowadays, but the technique has been practiced. Saidina Ali was like Umar Ibn Al-Khattab in
the way that he understood and applied the text of the Al-Qurán, and in his deep concern with linking
particular issues to general principles. Before he becoming Khalifah, he already considered as the best judge
in Madinah. When the Prophet appointed Saidina Ali judge in Yemen, he prayed for him, saying: "O Lord!
Guide his heart and make him speak the truth."

Whenever a matter was referred to Saidina Ali for judgement, he would accept it without hesitation. Plus,
if he were asked to give a fatwa, he would do so by citing from the Al-Qurán and then the Sunnah. Indeed
the knowledge of both was very well known. Aishah said: "In regard to the Sunnah of the Prophet, he was
the most knowledgeable of all people".

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C) Time of the Sahabah and Tabi'in

This period is considered to have begun in 40 A.H when the period of the Khalifah Ar-Rasyidin ended.
This is the time where the Fuqaha was born among the Sahabah and Tabi'in. During this time, the main
sources were Qurán, Sunnah, Ijma’, Opinion and Fatawa from Sahabah and Ijtihad. In general, it was
almost the same as in the time of the companions.

There are a few situation when it was not mentioned in the Al-Qurán and Sunnah explicitly, the Tabi’in
will refer to the fatawa and opinion from Sahabah before ijtihad. There are a few Tabi’in that does this
such as Said bin Al-Musyyab, ‘Urwah bin Al-Zubair and Ibrahim Al-Nakha’i.

D) Time of Imam As-Syafi’ie

After the time of Tabi’in, there are a lot of problem arises which the specific solution was not mention in
the Al-Qurán and Sunnah. This is due to the factor empire of Islam is getting bigger, most army and
Muslimin migrated to new places, there are mixed of Arabic people and non-arabic such as Rome and Parsi,
and the lifestyle was changed as well as the need of community and environment.

The growth of Usul Al-Fiqh appears official in the middle of second century and it follows by the initiative
from Imam As-Syafi’ie that written Al- Risalah. Inside Al-Risalah, Imam As-Syafi’ie put together the
verses from Qur’an and explanation of the Hukum, Nas Nasikh and Mansukh, Sunnah, Ijtihad, Ijma’
and Qiyas. After the completion of Ar-Risalah from Imam As-Syafi’ie, other scholars start to expand
knowledge of Usul Al-Fiqh with more appropriate arrangement. In overall, the arrangement Usul Al-Fiqh
as the independent knowledge is started from contribution of Imam As-Syafi’ie.

E) Time of the Contemporary Scholars (Mutakhir Scholars)

The scholars from this time arrange the Usul Al-Fiqh by combining the arrangement technique that has
been done by the previous scholars and follower of Imam As-Syafi’ie and Imam Hanafi. In overall, the
mutakhir scholars combine the arrangement of mutakallimin with scholars of Hanafi. Another method
is they build Usul Al-Fiqh based on dalil and combine it to the problems arises.

F) Recent Time

Other than previous method that has been use by all the people that lives in the previous time, nowadays
Usul Al-Fiqh includes Maqasid As-Shari’ah into it. One of the scholars that contribute to this works such
as Abu Ishak Ibrahim bin Musa Al-Lakhami Al-Syatibi in the 790 Hijrah with his book named Al-
Muwafaqat Fi Usul Al-Ahkam.

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Question 2

The Legal Maxim " In contracts, greater weight is given to intention and meaning than words and
phrases (‫ ")العبرة في العقود بالمقاصد والمعاني ال بااللفاظ والمباني‬State and explain FIVE applications of this legal
maxim.

This rule of jurisprudence is significant and reflect the role in the transactions. Those who enter as a party
to a contract with another party must verify the statements contained in that contract does reflect the
intention or to know if carry other meanings, and their impact later on the implementation of the scope of
the contract, so as to avert conflict. In addition, to avoid from having a contract with another meaning-
bearing which the words lead to disagreement between the parties, later. This is the base upon over many
of the provisions, and include aspects of utmost importance.

The first example of this application is within the contract of Wakalah (agency). Agency in sale refers to
an agency in which a principal appoints an agent to sell a certain property on behalf of him. However, an
agent should not have the intention to take advantage of the situation of wakalah. Let say, the agent wants
to buy the property while the price is lower. Thus he hides the fact of there are other potential buyers who
offer higher price from the principal and the agent not even try to obtain the best possible as the principal
ask him to do so. This shows his intention to take advantage of the situation just for his benefit and it reflects
the legal maxim that stresses in the intention and meaning of making a contract. It will determine how the
party executes their works and responsibility.

A second example from Salam contract (Bay al-salam). Clearly, salam contract is undertaking to deliver a
certain commodity after receiving the payment in advance. However, the seller should not sell something
that he does not have. To illustrate, if a seller makes a deal to sell an iPhone to a buyer, and the buyer agreed
to pay after confirming the date to receive the delivery. Unfortunately, the seller made the deal but the
iPhone has not been out from the factory yet and this cause the buyer to failed to get the delivery and the
payment already been taken by the seller. It could lead to dispute and deception happen. It is unfair to the
buyer and the buyer might lose the money. Action are based on intention and this situation shows that seller
is not honest, taking advantage and took someone else's money without a proper business transaction.

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The third example is when a customer made choices to choose either place deposit amount into Wadiáh
contract or deposit into conventional banks. Wadiáh contract only allows the bank to use the deposit with
permission from the customer. Conventional take a deposit from customer like a loan and return with
interest. If the customer were only intended to keep the deposit amount safe he would prefer Wadiáh
contract but instead choosing to deposit amount in conventional is enough to illustrate that the intention of
the customer to gain more money. This is wrong because of the riba'. The choice customer made portrays
the intention of his action.

Next example, Istisna‘contract which a seller who provides the material and services for manufacturing for
specific price in the certain period of time. The manufacturer should charge the person according to the cost
of the material and state clearly the payment for services so that uncertainty would not occur and the person
who pays would know why he is being charged for that amount. However, the manufacturer should not
state the price of material differently than the actual cost of the material. That will not be a right way to
increase his profit. That shows the manufacturer just want to gain profit but then did not consider that the
price might burden the person.

Last but not least, repurchase sale (Bay al-Inah). A person who is in need of money, purchases a property
from seller for a deferred price and resells it to him for a cash price. The person would agree to pay the
deferred price either in a lump sum or instalment. Then the person will sell back the property to the seller
and get the cash and the property will revert to the seller. According to the Hanafi, this action is haram, and
Shafi'ie said its makruh if the parties only use this method with an intention to circumvent the prohibition
of riba'. The hidden intention of the person in contract Bay al-Inah can be known by their subsequent action.
The action of sell in Bay al Inah is similar as interest added in the loan it is just use property as means to
cover it. This goes back to the legal maxim that emphasises how intention and meaning bring greater weight
in a contract.

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REFERENCES

Al-Awani, T. J. (2003). Source Methodology In Islamic Jurisprudence (Usul Al- FIqh Al- Islami). London:
The International Institute Of Islamic Thought.

Muda, U. A. (2003). Sejarah Perundangan Islam Dan Mazhab Fiqh. Kuala Lumpur: Pustaka Salam Sdn.
Bhd.

Ustaz Abd. Latif Muda, D. R. (2012). Pengantar Usul Fiqh. Kuala Lumpur: Pustaka Salam Sdn. Bhd.